TMI Blog2014 (8) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... dy existing what is being done is to renovate the banks of the river. In view of this position, we are of the view though the activity undertaken by the appellants are covered by the main definition but gets excluded due to the exclusion clause. In view of this analysis, the activity undertaken by the appellant will not get covered by the "site formation and clearance, excavation and earth moving and demolition service" and accordingly no service tax would chargeable. - Demand set aside - Decided in favor of assessee. - ST/120/08-Mum., ST/224/09-Mum., ST/153/10-Mum., ST/709/11-Mum. & ST/249/12-Mum - Final Order Nos. A/1237-1241/2014-WZB/C-I(CSTB) - Dated:- 22-7-2014 - S S Kang And P K Jain, JJ. For the Appellants : Shri Balbir Singh, Adv. Shri H G Dharmadhikari, Adv. For the Respondent : Shri V K Agarwal, Additional Commissioner (AR) PER : P K Jain Common issue is involved in all the five appeals and are therefore being taken up together. The first three appeals are filed by M/s. ITD Cementation India Ltd. and are pertaining to period 16.6.2005 to 31.8.2006, 1.9.2006 to 31.08.2007 and 1.9.2007 to 31.8.2008. The remaining two appeals are pertaining to M/s. Ga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;site formation and clearance, excavation and earth moving and demolition' is unsustainable in the light of CBEC Circular No. 123/05/2010-ST dated 24.5.2010. The said Circular contemplates that if the contract is for the site formation as a standalone activity, only in that case it will be classified as 'site formation and clearance, excavation and earth moving and demolition' but if the said activity is a part of other complete work the classification of other complete work will apply. The Hon'ble Tribunal has decided the very issue of classification by placing reliance on this circular in the following cases. [i] Radius Corporation Ltd. vs. CCE, Raipur 2014 (33) STR 416 (Tri. Del) [ii] Totem Infrastructures ltds. Vs. CCE, Hyderabad 5. Learned Advocate argued that confirmation of demand under wrong classification is unsustainable as per following case laws: 1) Seven Hills Construction Vs. Commissioner of Service Tax, Nagpur Order No. A/1832/2012/CSTB/C-I dated 23.2.2012 2) Divya Enterprises Vs. CCE, Mangalore 2010 (19) STR 370 3) Ritesh Enterprises Vs. CCE, Bangalore 2010 (18) STR 17 4) Aces Associates Vs. CCE, Bangalore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The said company has been created as a special purpose vehicle. The object of the said company is to develop the river front of Sabarmati River in Ahmedabad. This is being done by reclaiming the land from the river bed of Sabaramati River and after the reclamation of the land, the reclaimed land is to be used for public purpose such as garden, promenades, walkways etc. and other part of the reclaimed land will be used for commercial buildings and residential buildings. It is also proposed to construct road for transportation purpose on the reclaimed land. Learned A.R. further submitted that reclamation of the land is specifically included in the site formation and clearance, excavation and earth moving and demolition services . In view of the said position there can be no doubt that the activities of the appellants are covered by the said entry. Construction of diaphragm wall, anchor wall, fill for Guide Bund are the main activity for reclamation of land. The ld. A.R. further submitted that appellants have try to mislead that the project envisaged retention of water, improving the water level, flood etc. Ld. A.R further contended that appellants contention that their activities ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocuments. Method statement in the bid document reads as: 1. The main activities involved in this tender are as follows: a. Cleaning and Grabbing, removing and disposing (including all leads and lifts) of all materials such as trees, bushes, shrubs, stumps, roots, grass weeds, top organic soil, garbage, soil waste of any thickness, rubbish etc. b. Backfilling under water with special fill of construction of embankment of required height without compaction. c. Backfilling above water level with special fill for construction of embankment of required height with compaction. d. RCC Diaphragm wall 600 mm thick, 15.00 16.00 m depth (including construction of pretrench wall). e. Providing and laying of R.C.C. hume pipes and construction of box culverts. Hums pipes and box culvers will be connected to diaphragm wall. f. Construction of anchor slab, cut off wall for diaphragm wall anchorage parapet wall. 2. Embankment construction with special fill under water will be done by end tipping without compaction, Special fill will have angle of internal friction of about 30 0 and maximum particle size not exceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we shall be compensated for retrenching of the panels excess concrete consumed in the work due to this variation. It is seen from the said documents that appellants are required to construct diaphragm wall, anchor slab and retention wall with special fill for guid bund in different sectors alongside the Western and Eastern Bank of the Sabarmati River in Ahmedabad. The said work is to reclaim a part of the river bad land of the Sabarmati River. Keeping in view, the nature of activity, we have no hesitation in holding that the whole activity is in connection with the reclamation of land. In our view, this is the main and most important activity for reclaiming the land. In fact even from the expenditure angle the amount spent in the said activity would form the major portion of expenditure in connection with the reclamation of the land (excluding the facilities like commercial complex, residential complex, roads etc. to be construed later on the reclaim land.) We have therefore no hesitation in holding that the activity undertaken by the appellants are site formation and clearance, excavation and earth moving and demolition service. 11. The Ld. Advocate without specifying in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uoted is the stay order in the case of M/s. Totom Infrastructure Ltd. (supra). We have gone through the said stay order. First of all, this is a order on stay petition and the issue was whether prior to 1.6.2007 the activity undertaken is works contract or site formation and clearance, excavation and earth moving and demolition service. We do not find the said decision is of any help or consequence in the facts of the present case. Learned Advocate has quoted number of case laws to support that the confirmation of demand under wrong classification is not sustainable. As we already have held that the services are classifiable under the site formation and clearance, excavation and earth moving and demolition service we find the case laws are of no help. Learned Advocate also quoted that the activities are to be classified under the correct classification of services as per the terms of agreement and in support of the same quoted number of case laws. There cannot be two opinions that the activities are to be classified under the correct classification of service. However, as mentioned earlier, in our view the correct classification of the activities in the present case is site form ..... X X X X Extracts X X X X X X X X Extracts X X X X
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